11-002953 Joseph Glisson vs. City Of Tallahassee And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, October 5, 2011.

Summary: Revisions to wastewater permits were minor and met permitting criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH GLISSON, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2953

)

CITY OF TALLAHASSEE AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On August 16, 2011 , a n administrative he aring was held in

this case in Tallahassee before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings

(DOAH) .

APPEARANCES

For Petitioner: Joseph Glisson , pro se

198 Mount Zion Road

Wakulla, Florida 32327

For Respondent Department of Environmental Protection:

Francine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Comm onwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent City of Tallahassee:

James S. Alves, Esquire

Brook e E. Lewis , Esquire

Hopping, Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environmental Protection (DEP or the Department) should allow

the City of Tallahassee to revise its domestic wastewater

facility permits for Thomas P. Smith Water Reclamation Facility

(TPS) and Lake Bradford Road Wastewater Treatment Plant (LBR).

PRELIMINARY STATEMENT

On March 24, 2010, the City of Tallahassee submitt ed

applications for minor permit revisions to the permits and

associated administrative orders under which it operates TPS and

LBR. On April 7, 2 011, the Department issued its Consolidated

Notice to Issue Minor Permit Revisions. On June 13, 2011, the

Dep artment referred Joseph GlissonÓs Amended Petition for

Administra tive Hearing (Amended Petition) to DOAH for

appropriate proceedings under chapter 120, Florida Statutes. An

administrative hearing was held on August 16, 2011.

During the hearing, the City o f Tallahassee called three

witnesses: Robert McGarrah, an expert in construction

management, environmental management , and permitting; Sondra

Lee, P.E., an expert in wastewater treatment plant engineering

and permitting; and Eldon "Don" C. Blancher, Ph.D. , an expert in

water quality and ecosystem analysis and assessment, and aquatic

toxicology. The City had its Exhibits 1 - 13, 15, 17 - 21, and 23

admitted in evidence.

The Department called William A. Evans, P.E., an expert in

industrial and domestic wastewat er permitting and civil and

environmental engineering. The Department had its Exhibit 1

admitted in evidence.

Petitioner testified as a lay witness and cal led two other

witnesses: Todd Kincaid , Ph.D. ; and Gareth Davies. Petitioner

offered his Exhibits 2 , 7, and 8 in evidence. Exhibit 7 was

admitted in evidence. Ruling was reserved on objections by t he

City and Department to PetitionerÓs Exhibits 2 and 8. The

objections are overruled, and those exhibits also are admitted

in evidence .

The Transcript of the administrative hearing was filed , and

the parties submitted proposed recommended orders, which have

been considered.

FINDINGS OF FACT

1. The City of Tallahassee owns and operates a sanitary

sewer wastewater collection system that collects and processes

ev erything that is discharged to the City's sanitary sewer

collection system. The City's collection system has

approximately 900 miles of gravity pipes and 100 - 200 pumping

stations serving approximately 230,000 customers. The City's

sanitary sewer wastewat er treatment facilities include TPS, LBR,

the Tram Road Reuse Facility, the Southeast Farm, and the

Southwest S prayfield.

2. Petitioner resides at 198 Mount Zion Road in

incorporated Wakulla County. He contends that the revised

permits will result in environ mental degradation of Wakulla

Springs and the Wakulla River.

A . The City's Sanitary Sewer Treatment System

3. TPS, located at 45 05 Springhill Road, is the CityÓs

primary wastewater treatment plant, with a design treatment

capacity of 26.5 million gallons p er day (MGD). The annual

average amount of sewage treated at TPS over the past five years

is approximately 17.5 MGD , leaving approximately 9 MGD of

unutilized treatment capacity.

4. LBR is an older treatment facility with design

treatment capacity of 4.5 M GD. LBR is located at 1815 Lake

Bradford Road, approximately 3 miles from TPS. Pipes connect

LBR to TPS.

5. Design treatment capacity is the amount of sewage that

a treatment facility can adequately handle over a period of time

and still easily meet environ mental performance standards

required for treating wastewater. If a treatment facility

reaches its design treatment capacity on an annual average

basis, it becomes more difficult to adequately treat wastewater

to environmental standards.

6. As currently permitted, the combined effluent from TPS

and LBR is transmitted to the Southeast Farm or to the Southwest

Sprayfield for agricultural reuse. The biosolids from both TPS

and LBR are treated at TPS.

7. The Southeast Farm is a 4,000 - acre restricted access

re use facility, with approximately 1,900 acres of non - edible

crops under slow - rate irrigation. Reclaimed water that meets

DEP's Part II Reuse Standards (Part II reclaimed water), as set

forth in Florida Administrative Code c hapter 62 - 610, which apply

to slo w - rate irrigation of non - edible crops , can be used at the

Southeast Farm . Applicable requirements include basic level

disinfection and secondary treatment.

8. The Southwest Sprayfield is a 65 - acre area at the TPS

facility also available for land applicatio n of Part II

reclaimed water.

9. The Tram Road Reuse Facility, with a capacity of 1.2

MGD, provides public access reuse water meeting Part III Reuse

Standards (Part III reclaimed water), as set forth in chapter

62 - 610, to customers in the Southwood area of Ta llahassee.

Under chapter 62 - 610, Part III standards apply to application in

areas accessible to the public. Among other things, tertiary

treatment and high level disinfection are required.

B . The History of the Advanced Wastewater

Treatment (AWT) Projec t

10. On February 11, 2004, the City applied to DEP to renew

its permit to operate the TPS domestic wastewater treatment

plant and associate d sprayfields. DEP issued its i ntent to

renew the permit on February 13, 2006.

11. Petitioner, along with others, filed petitions for an

administrative hearing in March 2006 to contest the renewal

permit. The common element emphasized in all of the petitions

was a concern that the proposed permit did not adequately

protect Wakulla Sprin gs from environmental degradation resulting

from nutrients in the effluent applied at the City's

sprayfields.

12. In 2006 and 2007, the Florida Geological Survey, the

United States Geological Survey, and others conducted studies

that traced groundwater flow p aths from the Southeast Farm

sprayfield to Wakulla Springs. The studies determined that

there is a greater hydraulic connection between the Southeast

Farm and Wakulla Springs then previously understood. As a

result, the City agreed to settle the cases an d propose advanced

wastewater treatment (AWT) upgrades to its facilities.

13. On December 19, 2006, the parties to the

administrative proceeding entered into a Settlement Agreement.

14. The Settlement Agreement was the basis for what the

City would include i n amended permit applications for TPS and

LBR and articulated the process by which DEP would review the

amended applications for those facilities.

15. Under the terms of the Settlement Agreement, the City

committed "to filing an amended permit application" in which it

would seek authorization to "upgrade its entire wastewater

treatment system" to meet AWT standards. The permit application

would request authorization to implement certain "physical

upgrades" at the TPS and LBR treatment plants to meet the

speci fied treatment standards with "continued utilization of the

Southeast Sprayfield and Southwest Sprayfield" for land -

application of the treated wastewater, and with certain

operational changes in the sprayfields and a commitment to

evaluate other wastewater reuse opportunities. The Settlement

Agreement provided that "[t]he City's amended application will

also commit to develop and utilize other additional public

access reuse sites in appropriate areas in order to reduce the

hydraulic loading at the Southeas t Sprayfield and Southwest

Sprayfield and distribute the public access reuse water."

16. Under the Settlement Agreement, t he City also agreed

to propose a specific implementation schedule for enumerated

physical upgrades to the LBR and TPS treatment facilitie s and a

schedule of specific nitrogen reductions that would occur over

time. More specifically, the amended application would propose

achieving a nitrogen concentration of 12.0 milligrams per liter

(mg/L) within six months after DEP issued amended permits and

further reductions over time that would conclude in meeting 3.0

mg/L within six years.

17. In January 2007, the City submitted amended p ermit

applications as agreed in the Settlement Agreement. On

January 29, 2008, DEP issued Permit Nos. FLA010139 (for TPS) and

FLA010140 (for LBR) , and corresponding Administrative Orders

AO051 NW (for TPS) and AO05 0 NW (for LBR) , which authorized

continued operation of the TPS and LBR facilities with

substantial modifications to the existing treatment systems and

gra dual reductions in nitrogen concentrations, as well as other

requirements, in accordance with the Settlement Agreement. The

permits incorporate d by reference the corresponding

administrative orders which, among other things, established a

schedule for ach ieving compliance with the permit conditions.

18. All parties to the Settlement Agreement agreed that

the permits and administrative orders issued by DEP were

consistent with the Settlement Agreement. No party challenged

the permits or asserted that they did not adequately implement

the Settlement Agreement.

19. Under the January 2008 permits and administrative

orders, the City is required to: reduce nitrogen levels

incrementally down to 3 milligrams per liter (mg/L) by 2014;

meet concentration limits for total phosphorou s, carbonaceous

biochemical oxygen demand, and total suspended solids by 2014;

produce all Part III quality reclaimed water; and upgrade its

biosolids processing to produce all Part AA biosolids. The AWT

Project has a total budget of $227 milli on.

20. At the time of issuance of January 2008 permits and

administrative orders , the effluent applied at the Southeast

Farm had a concentration of 13 mg/L of total nitrogen. Under

the compliance schedule in the January 2008 permits and

administrative order s , total nitrogen concentrations cannot

exceed: 12 mg/L annual average daily flow (AADF) beginning in

July 2008; 9 mg/L AADF beginning in January 2011; 6.5 mg/L AADF

beginning in January 2013; and 3 mg/L AADF beginning in

January 2014.

21. In light of these nitrogen reductions, it has been

projected that the nitrate load to the land surface at the

Southeast Sprayfield will be reduced to approximately 98,000

kilograms per year in 2018, compared with a high of

approximately 600,000 kilograms per year in the 198 0s. By way

of comparison, it has been projected that the nitrate load from

septic tanks will be approximately 350,000 kilograms per year in

2018.

22. With regard to biosolids (the solid material separated

from the sewage stream during the wastewater treatment process),

the January 2008 permits and administrative orders eliminated

the City's authorization to land - apply Class B biosolids. All

biosolids are required to meet Class AA requir ements, with off -

specification ma terial sent to an appropriately licensed

landfill for disposal. The eliminat ion of land application of

Class BB biosolids reduces the nitrate load to the land surface

by approximately 200,000 kilograms per year.

23. The Janua ry 2008 permits and administrative orders

also required the City to undertake a Reuse Feasibility Study

and submit the study to the Department. The City did so in

2009. In addition, the January 2008 permits and administrative

orders authorized new public access reuse service areas. More

specifically, the TPS permit authorized the new public access

service area identified as R - 006 and the LBR permit authorized

R - 005. Geographically, the R - 005 and R - 006 service areas are

identical.

24. The permits do not req uire the City to develop

additional reuse sites or additional reuse customers. The LBR

permit states that "[t]he construction date of R - 005 is to be

determined following a feasibility study to ascertain the

demand, potential users, and costs for the syste m," and that

"[r]eclaimed water in excess of the demand by the new Part III

Reuse Area, can be stored in the Reclaimed Water Storage Tank or

diverted to an existing Part II slow - rate restricted access

system, the Southeast Farm . . . ." The TPS permit sta tes that

the new service area, users, and demand for R - 006 "are to be

determined."

25. The City's Reuse Feasibility Study did not commit to

any specific outcomes concerning development of additional reuse

sites or addition al reuse customers. While the s tudy recognized

the potential environmental benefits of additional reuse sites,

it also indicated that "[t]he combined possible impact of the

Unified Stormwater Rule and [Total Maximum Daily Load]

requirements should be evaluated prior to the

implementation/des ign of any reuse system."

26. The City commissioned the 1.2 MGD Tram Road public

access reuse facility in 2008 and is currently expanding the

distribution system from that facility. The City has no means

to require customers to accept reuse water. At presen t, the

City's 1.2 MGD Tram Road public access reuse facility is

approximately ten percent utilized.

C . The Permit Revisions

27. The City filed applications in December 2008

requesting minor revisions to the January 2008 permits and

corresponding administrative orders for LBR and TPS. The City

requested a 12 - month extension of the compliance schedule for

upgrading biosolids treatment equipment; a six - month extension

for construction of the treatment trains; and a 24 - month

extension o n completion and start - up of the LBR facility. The

requested revisions were largely a result of damage to the

City's system from Tropical Storm Fay. The City did not request

any changes to the environmental performance requirements

contained in the 2008 permits.

28. In March 2009, DEP issued a Consolidated Notice of

Permit Revision approving the City's applications for minor

revisions. No third party challenged those revisions.

29. The City applied for the minor permit revisions at

issue in this proceeding on March 24, 2010. The City requested

the following revisions to the compliance schedules: (1) a

12 - month extension to install the new biosolids dryer; (2) a

12 - month extension to each of the installation dates for the new

treatment trains; and (3) indef inite deferral of the

construction upgrades at LBR. The City also identified

differences in the final design from what was outlined in the

TPS Preliminary Design Report submitted to DEP in 2007.

30. On May 14, 2010, Petitioner filed a complaint in

circuit co urt asserting that the Settlement Agreement was still

a controlling document that prohibited revisions to the permits

unless the City first obtained Petitioner's agreement in

writing. On January 25, 2011, the court entered a final summary

declaratory judg ment finding that the December 2006 Settlement

Agreement "is moot having been satisfied upon the issuance of

the permits and administrative orders at issue."

31. With regard to the revisions at issue in this

proceeding, the City's request to indefinitely defe r the

upgrades at LBR is based on: (1) the City's re - assessment of

forecasted wastewater flow projections; (2) updated cost

projections for the upgrades at LBR; and (3) a technical

evaluation concluding that the City can achieve the 4.5 MGD of

treatment c apability previously provided by LBR through more

cost - effective means at future date.

32. More specifically, in 2009, the City analyzed its

forecasted flow projections for its wastewater treatment system.

Based on that analysis, the City determined that, fo r planning

purposes: (1) the per capita to daily wastewater flow rate

should be adjusted downward from 100 to 94 gallons per capita

per day; and (2) the population forecasts should be reduced

based on the latest population forecasts prepared by the

Tallah assee - Leon County Planning Department. Given these new

population growth and water use rate projections, the City

determined that the 4.5 MGD treatment capacity of the smaller

LBR facility is not necessary at this time. The 26.5 MGD TPS

facility has the capacity to handle and meet all of the area

wastewater needs for the reasonably foreseeable future. The

City's wastewater flow projections were independently confirmed

and represent sound engineering practice.

33. In addition, as the engineering efforts prog ressed on

the AWT project, the C ity identified that, as an alternative to

upgrading LBR to AWT, the same treatment capacity and treatment

levels could be achieved at TPS at a savings of over $30

million. The City has proposed that it will move forward wit h

design, permitting, and construction of the additional 4.5 MGD

of capacity at TPS in the future, closer to the time when the

capacity is needed.

34. The C ity requested the 12 - month extension to install

the new biosolids dryer because of financial and constr uction

scheduling concerns. Similarly, the 12 - month extension to the

treatment train construction schedule is a result of

construction schedule projections from the project contractor

showing completion of the upgrades outside of the current dates

in the TPS permit and administrative order.

35. The identified design differences from the preliminary

design report are largely a result of additional knowledge

gained as the design of the Project progressed. Several of the

revisions relate to upsizing infrastruct ure at TPS to allow for

future capacity increases at TPS to replace the treatment

capacity associated with the LBR facility if and when that

capacity is needed.

36. The City did not ask to alter the total nitrogen

reduction requirements in the January 29, 200 8, permits and

administrative orders. Thus far, the City has achieved the

total nitrogen reductions ahead of schedule, reaching an annual

average below 9 mg/L (the currently applicable interim

limitation) more than one year ahead of the January 2011

compl iance deadline.

37. The City has not asked to change any of the other

environmental performance requirements in the TPS and LBR

permits and administrative orders.

38. The permit revisions at issue do not ask to change the

presently - permitted hydraulic loading ra tes at the Southeast

Farm or Southwest Sprayfield.

39. The Department issued its Consolidated Intent to Issue

Minor Permit Revisions on April 7, 2011. The City published

newspaper notice of the Department's Consolidated Notice of

Intent in the Tallahassee De mocrat on April 9, 2011.

D . Effects of the Permit Revisions

40. The City prov ided reasonable assurances that, with the

requested revisions, it will continue to efficiently and

reliably meet the environmental performance requirements in the

January 2008 permi ts and administrative orders. The City

provided reasonable assurances that the permit revisions will

not adversely affect the City's compliance with the nitrogen

concentration limits and other environmental performance

requirements in the January 2008 per mits and administrative

orders , or increase hydraulic loading rates.

41. Biowin modeling demonstrated that the nitrogen limits

and other concentration limits in the January 2008 permits and

administrative orders can be achieved despite deferring upgrades

at LBR and postponing the construction of the treatment train

upgrades by 12 months.

42. The City provided re asonable assurances that the

permit revisions at issue will not increase the nutrient

concentrations or the volume of effluent applied at the City's

Southeast Farm or Southwest Sprayfield. For this reason, it is

not necessary to conduct studies evaluating the impacts of these

permit revisions on Wakulla Springs. The permit revisions will

not impact Wakulla Springs or the Wakulla River.

43. The deferral of upgrades at LBR will not result in an

increase in effluent applied at the Southeast Farm or Southwest

Sprayfield. Whether or not the City upgrades at LBR, the

unutilized Part III reuse water would have to be transported to

the Southeast F arm for agricultural reuse, which is authorized

by the existing LBR permit.

44. The deferral of upgrades at LBR will n ot hinder the

City's ability to provi de public access reuse water. By

September 2011, t he City will produce Part III public access

reuse water from TPS just as it would have at LBR . T he required

water quality will be available should customers be identif ied

in the future. Regardless whether the reuse apply comes from

LBR or TPS , the City will need to install new public access

reuse distribution facilities when customers are identified.

45. The distance between TPS and LBR does not affect the

City's ability to provide public access reuse water when

customers are identified. Depending upon where a future reuse

customer is located, it could prove easier and more cost -

effective to provide the reuse water directly from TPS. If a

new customer is identified near the LBR facility, the existing

pipes connecting TPS and LBR can be used to deliver the reuse

water to the LBR facility for ultimate distribution to the reuse

customer.

46. The City provided reasonable assurances that the

12 - month extension in the deadline for installation of the

biosolids dryer will not have any adverse environmental

consequences for Wakulla Springs. The City has purchased the

new biosolids dryer , and it has been delivere d to the site. The

City's existing biosolids dryer is performing well and making

Class AA biosolids. In the infrequent cases when the existing

dryer is not performing as desired, the City disposes of the

off - specification biosolids in an appropriately - li censed

landfill in accordance with the 2008 permit requirements.

F. Petitioner ' s Contentions

47. Petitioner essentially raised two issues in this

proceeding: (1) the proposed revisions to the permits are

substantial revisions rather than minor revisions; an d (2) the

City has not provided reasonable assurance that the proposed

permit revisions (in particular, delaying compliance schedules

for treatment process upgrades, abandoning commitments to

treatment process upgrades, and retreating from the commitment

t o reduce hydraulic loading of up to 4.5 MGD) will not "cause or

exacerbate" pollution of Wakulla Springs and the Wakulla River.

48. Regarding the first issue, the proposed revisions

extend compliance dates and are not expected to lead to a

substantially dif ferent environmental impact .

49. In any event, DEP processed the minor permit revisions

at issue using essentially the same process used for substantial

permit revisions. For example, the Department requested

additional information prior to deeming the app lication complete

and required newspaper publication of its proposed agency action

with actual notice to interested parties. With the exception of

the application fee, the minor revision was processed in the

same manner as a substantial revision. Petitio ner made no

demonstration that he was adversely affected by the distinction

between a minor and major permit revision.

50. With regard to Petitioner's second issue, Petitioner

put on no testimony or evidence demonstrating adverse impacts

associated with the p ermit revisions at issue. Two

hydrogeologists testified regarding groundwater studies they

conducted in 2006 and 2007, which identified a connection

between the City's Southeast Sprayfield and Wakulla Springs. As

a result of this work , the City agreed to the more stringent AWT

standards in the 2008 permits and administrative orders . This

testimony did not address whether the permit revisions at issue

would adversely affect Wakulla Springs or Wakulla River.

51. Petitioner did not demonstrate how the permit

revisions at issue would impact Wakulla Springs. The permit

revisions will not increase the hydraulic loading at the

Southeast Farm or change the quality of the effluent being

applied for irrigation at the Southeast Farm.

52. Petitioner's contentions that delaying the schedule

for treatment upgrades at TPS and deferring upgrades at LBR will

impact Wakulla Springs or the Wakulla River are not supported by

the evidence. Deferring the upgrades at LBR and delaying the

schedule fo r the treatment upgrades at TPS, as proposed in the

minor permit revisions, will not adversely impact the City's

ability to meet the environmental performance requirements in

the existing permits and administrative orders.

53. Petitioner's contention tha t the minor permit

revisions will adversely impact Wakulla Springs and the Wakulla

River because they represent a retreat from a commitment to

reduce the hydraulic loading at the Southeast Farm by 4.5 MGD is

unsupported by the evidence. Petitioner's argum ent is based on

his assertion that the January 2008 permits and administrative

orders require the City to divert 4.5 MGD of effluent from the

Southeast Farm by distributing all of the treated wastewater

from LBR to public access reuse customers. The Janua ry 2008

permits and administrative orders authorized a new public access

reuse area; they did not require the City to locate sufficient

public access reuse customers to take all or any portion of the

4.5 MGD from LBR. Moreover, reuse water is as readily

a ccessible from TPS as from LBR.

54. Petitioner relies on the following clause in the

attachment to the LBR administrative order (AO05 0 NW) to support

his argument that the permit revisions will increase hydraulic

loading at the Southeast Farm: "All or part of the influent

flow can be directed to the T.P. Smith Water Reclamation

Facility or Treatment." Petitioner argues that this

authorization implies that the City cannot direct flow from LBR

to the Southeast Farm beyond the 36 - month compliance timeline in

the LBR administrative order. This argument ignores the plain

language of the LBR permit itself, which expressly allows land

application at the Southeast Farm of all effluent from LBR in

excess of public access reuse demand.

55. Petitioner also relies on lang uage in the 2006

Settlement Agreement as imposing an obligation on the City to

identify additional public access reuse customers. The 2006

Settlement Agreement was fulfilled upon issuance of the permits

and administrative orders in January 2008 and is now moot.

Further, the permits and administrative orders do not impose

public access reuse requirements on the City beyond submittal of

the Reuse Feasibility Study.

CONCLUSIONS OF LAW

56. In addition to the administrative agency making the

decision (in this cas e, DEP ), and under section 120.52(13)(a),

Florida Statutes, a "specifically named" person whose

substantial interests are being determined by the agency in the

proceeding (in this case, the City ), section 120.52(13)(b)

provides that the term "party" includ es "[a]ny other person

. . . whose substantial interests will be affected by proposed

agency action . . . ."

57. For years, what a person seeking standing under what

is now section 120.52(13)(b) had to allege and prove was

determined under the standard set out in Agrico Chem. Co. v.

DepÓt of Envtl. Reg. , 406 So. 2d 478, 482 (Fla. 2d DCA 1981):

[B]efore one can be considered to have a

substantial interest in the outcome of the

proceeding he must show 1) that he will

suffer injury in fact which is of suff icient

immediacy to entitle him to a section 120.57

hearing, and 2) that his substantial injury

is of a type or nature which the proceeding

is designed to protect. The first aspect of

the test deals with the degree of injury.

The second deals with the na ture of the

injury.

Although Agrico was decided on the second prong of the test, its

first prong also has been applied to make standing

determinations.

58. More recent appellate decisions have clarified the

first prong of the Agrico test. In order for a third party to

have standing as a petitioner to challenge agency action in an

administrative proceeding, the evidence must prove that the

petitioner has substantial rights or interests that reasonably

could be affected by the agency' s action. See St. Johns

Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54

So. 3d 1051, 1055 (Fla. 5th DCA 2011); Palm Beach Cnty. Envtl.

Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla.

4th DCA 2009); Peace River/Manasota Reg'l Water Supply Auth. v.

IMC Phosphates Co. , 18 So. 3d 1079, 1082 (Fla. 2d DCA 2009);

Reily Enters., LLC v. Fla. Dep't of Envtl. Prot. , 990 So. 2d

1248, 1251 (Fla. 4th DCA 2008). See also § 403.412(5), Fla.

Stat. (ÐA citizen's substantial interests will be considered to

be determined or affected if the party demonstrates it may

suffer an injury in fact which is of sufficient immediacy and is

of the type and nature intended to be protected by this chapter

. . . . A sufficient demonstration of a substantial interest

may be made by a petitioner who establishes that the proposed

activity, conduct, or product to be licensed or permitted

affects the petitioner's use or enjoyment of air, water, or

natural resources protected by this chapter.Ñ)

59. The parties have stipulated that Petitioner has

substantial interests that reasonably could be affected by the

CityÓs permit revisions . For this reason , Petitioner has

standing to contest the permit revisions .

60. Under newly - enacted section 120.569(1)(p), the City

has the burden to present a prima facie case demonstrating

entitlement to these permit revisions, and Petitioner Ð has the

burden of ultimate persuasion and has the burden of going

forward to prove the case in opposition . . . .Ñ

61. Under rule 62 - 620.325(1)(f), "[ w]hen a permit is

revised, only the conditions subject to revision are reopened.

All other requirements and conditions of the existing permit

shall remain in effect until the permit expires." A revision to

a permit does not subject the entire permit to c hallenge; the

challenge is limited to the proposed revisions. See Friends of

the Everglades , Inc. v. Dep't of Envtl. Reg. 496 So. 2d 181, 183

(Fla. 1st DCA 1986)(applicant for a permit revision did not have

to provide " ' reasonable assurances' anew with re spect to the

original project").

62. Revisions to domestic wastewater treatment permits are

governed by rule 62 - 620.325. Under that rule, revisions may be

substantial or minor.

63. Under rule 62 - 620.200(24) and (25) , minor

modifications and revisions include , among others, those that

are not expected to lead to a substantially different

environmental impact and extension of compliance da tes and

construction schedules. The permit revisions at issue fall

within this definition. Conversely, they do not fall wi thin the

rule definition of substantial modifications and revisions. See

Fla. Admin. Code R. 62 - 620.200(49) - (50).

64. Sections 403.086, 403.087, and 403.088, and Florida

Administrative Code c hapters 62 - 302, 62 - 600, 62 - 601, 62 - 610, 62 -

620, 62 - 640, and 62 - 69 9 govern the issuance of domestic

wastewater treatment plant construction and operation permits.

65. Under rule 62 - 620.320 (1), a permit revision shall be

granted if the "applicant affirmatively provides the Department

with reasonable assurance . . . that the . . . modification

. . . will not discharge or cause pollution in contravention of

Chapter 403, F.S., and applicable Department rules." The 2008

permits and administrative orders for TPS and LBR included

numerous environmental performance requirements nec essary for

the City's wastewater treatment facilities to demonstrate

compliance with Department standards and rules. The City has

provided reasonable assurance that the permit revisions at issue

do not revise those environmental performance requirements o r

result in environmental impacts. The City has provided

reasonable assurance that, with the proposed revisions, it will

be able to meet the environmental performance requirements in

the 2008 permits and administrative orders. The City has

provided reaso nable assurance that the revisions will not

"discharge, emit, or cause pollution in contravention of

Department standards or rules."

66. Under rule 62 - 600.400(1)(a), "modification s of

existing [wastewater treatment] plants shall be designed in

accordance wi th sound engineering practice." The City has

provided reasonable assurance through expert testimony,

modeling, and analysis that the minor permit revisions are in

accord with sound engineering practice.

67. Petitioner did not carry his burden of proving,

thr ough competent substantial evidence, that the Department

should not issue the proposed minor permit revisions. While

there is a connection between the City's Southeast Sprayfield

and Wakulla Springs, Petitioner did not demonstrate that the

proposed minor permit revisions will have any adverse impact on

Wakulla Springs or the Wakulla River. All testimony from

experts knowledgeable about the minor permit revisions at issue

established that the minor permit revisions will not impact

Wakulla Springs or the Wa kulla River.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department enter a final order issuing

the minor permit revisions at issue in this case.

DONE AND ENTERED this 5th day of October , 2011 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of October , 2011 .

COPIES FURNISHED:

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Francine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

James S. Alves, Esquire

Brook e E. Lewis , Esquire

Hopping, Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

Joseph Glisson

198 Mount Zi on Road

Wakulla, Florida 32327

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agenc y that will

issue the final order in this case.